Bolts `freedom of speech' crusade won't right his wrongs

DAVID MARR19 Oct 2011, 10:33 p.m.

Andrew Bolt's martyrdom is now complete: twice in the next fortnight his popular column in the Herald Sun will be accompanied by a nearly unreadable ''corrective notice'' outlining his sins against the Racial Discrimination Act. And that's it.

Bolts `freedom of speech' crusade won't right his wrongs

Andrew Bolt's martyrdom is now complete: twice in the next fortnight his popular column in the Herald Sun will be accompanied by a nearly unreadable ''corrective notice'' outlining his sins against the Racial Discrimination Act. And that's it.

Has he been fined for offending, insulting, humiliating and intimidating nine fair-skinned Aborigines? No. Does he have to pay them damages? No. Has he been warned off the delicate subject of whites identifying as blacks? Not at all.

In two columns published in 2009, Bolt named and shamed nine Aborigines he claimed were essentially white but identified as black to make a political point or advance their careers. Sadly for Bolt, all nine had grown up identifying as Aboriginal from childhood, a fact his paper's lawyers had to admit even before the court case began.

Advertisement: Story continues below There is an issue here that really matters for white and black Australians but Bolt fundamentally botched his argument by naming the wrong names. Justice Mordecai Bromberg has now forbidden republication of the columns but republication is impossible anyway because they are so riddled with defamatory errors.

How else have Bolt and the Herald Sun suffered? Has the judge directed the paper strip the columns from its website? No. From its archives? No. Has he compelled the paper and its star columnist to apologise to the aggrieved Aborigines? Not even that. All Justice Bromberg has ordered to be done is publication of a 500-word notice in the paper and online setting out the nub of his judgment.

Its appearance three weeks ago sparked a controversy over freedom of speech in Australia, a controversy that has deeply divided journalists, lawyers and politicians. But all sides will probably see eye to eye on this: his Honour's prose lacks something of the verve, colour and slashing rhetoric of Bolt's efforts. His notice will be seen by many and read by few.

Really, Bolt and his editors should be breaking out the champagne. If the nine had sued in defamation, the paper might now be signing cheques for a few million dollars. The legal bills won't be cheap - the paper has been directed to pay most of the trial costs - but Bolt's ugly columns have not cost the Herald Sun much more than a fair dose of embarrassment.

That doesn't settle the free speech issues that hover over this case. The anti-vilification provisions of the Racial Discrimination Act used to attack Bolt are drafted far too broadly. They outlaw speech that is merely offensive or insulting. Vigorous public discussion in a free society is impossible without causing insult and offence.

This common problem with anti-vilification legislation in Australia is not solved by pointing to the strong free speech provisions of most of those laws, provisions that allow publication of even extreme material when conducted in good faith on matters of public interest. The law should not engage with offence and insult in the first place.

The Herald Sun and the shadow attorney-general, Senator George Brandis, are right to call for a reappraisal of the sections of the Racial Discrimination Act that brought Bolt undone. But short of abolishing these anti-vilification protections entirely, no amendment of the law would have helped the hapless Bolt.

He didn't just offend and insult. Justice Bromberg found the columnist's efforts were also likely to humiliate and intimidate the fair-skinned Aborigines attacked in those columns. Bolt ticked all the boxes in the Racial Discrimination Act. And the judge clearly signalled that in his opinion the columnist had also defamed the nine by accusing them of the cynical late-life adoption of Aboriginal identity.

The Herald Sun put out a statement after yesterday's decision: ''All Australians should have the right to express their opinions freely, even where their opinions are controversial or unpopular to some in the community.'' Absolutely correct. But surely not even in this awkward jam is Bolt's paper arguing that columnists are free to get it so comprehensively wrong when they mount ferocious attacks on people. There are limits.